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SYRIA: Austrian Position on Arms Embargo (as of 13 May 2013) 



• The Council Decision should be extended as its stands. Council Decision 
2012/739/GASP, as amended by Council Decision 2013/109/CFSP of 28 February 
2012, which provides for limited exceptions to the arms embargo against Syria for 
the protection of civilians, represents a carefully balanced compromise achieved 
after major concessions from all sides. The Gymnich meeting on 22/23 March 
confirmed that the overwhelming majority of EU member states is against further 
hollowing out the arms embargo. Those who unravel agreed EU positions will have 
to bear the responsibility for a possible expiry of the entire sanctions regime against 
Syria at the end of May. EU support for arms supply to one party of an internal 
armed conflict would set a dangerous precedent. 

• Lifting the EU arms embargo undermines the US-Russia understanding that 
opens a window of opportunity towards a renewed political process. The EU 
has repeatedly stressed the need for a political solution, including in our latest 
Council Conclusions. Lifting the EU arms embargo sends the wrong political 
message and would foil the new political initiative which was welcomed across the 
board, i.a. by EU HR Ashton and UN SG Ban Ki-Moon. 

• The "Syrian National Coalition for Revolutionary and Opposition Forces 
(SOC)" does not have full authority and control over all armed opposition 
groups and cooperates with groups which include various extremist and 
terrorist fighters. SOC lacks acceptance by the Syrian public and does not 
represent all political and military forces striving for a democratic Syria. SOC has, so 
far, shown little readiness to engage in a political process. The SOC may have 
renounced terrorism in declarations but is unwilling to disassociate itself from groups 
like Al-Nusrah, which the US has listed as a terrorist organisation. 

• There are more than enough weapons in Syria. Delivery of more weapons will 
only spark an arms race. Any weapons risk ending up in the hands of groups 
(estimated number of rebel groups - more than 600) that follow objectives different 
from the democratisation of Syria or from a peaceful region including Israel. 

• The supply of arms to the opposition by EU member states constitutes an 
additional threat to the security of UNDOF peacekeepers, including from 
Austria. Just recently, a rebel group nominally under the command of the Free 
Syrian Army again took UNDOF peacekeepers hostage and used them as human 
shields. Not only the Assad regime but also rebel groups have recurrently violated 
international humanitarian law. 

• The supply of arms to the Syrian opposition would be in breach of 
international law and EU law: In particular, as laid out in more detail below, the 
supply of arms would 

- amount to a breach of the customary principle of non-intervention and the 
principle of non-use of force under Art. 2 para. 4 of the UN Charter. 

- violate EU Council Common Position 2008/944/CFSP on arms export control by 
EU Members. 

- amount to a violation of Security Council resolutions establishing an arms 
embargo against individuals and entities associated with Al-Qaida. 

- Member States supplying arms to the Syrian opposition would incur State 
responsibility for aiding and assisting in the commission of internationally 
wrongful acts. 



Lifting the Arms Embargo - Legal Aspects 

1. The supply of arms to the Syrian opposition would amount to a breach of the 
customary principle of non-intervention and the principle of non-use of force under Art. 2 
para. 4 of the UN Charter. 

The principle of non-intervention is firmly established in international law. In 2007, former UK 
Legal Adviser Sir Michael Wood put it in a nutshell: "Intervention on the side of those opposing 
the Government [...] is clearly prohibited." 1 In the 1984 Nicaragua Case the International Court 
of Justice (ICJ) rejected any alleged right for States to intervene in support of an internal 
opposition in another State, whose cause appeared particularly worthy for political or moral 
reasons: "The Court therefore finds that no such general right of intervention, in support of an 
opposition within another State, exists in contemporary international law (para. 209)". The ICJ 
also stated that acts constituting a breach of the customary principle of non-intervention would 
also, if they directly or indirectly involve the use of force, constitute a breach of the prohibition 
not to use of force in international relations, as embodied in Art. 2 para. 4 of the UN Charter. 
The continuing relevance of the Nicaragua Case was confirmed by the ICJ in its 2005 judgment 
in the Case concerning Armed Activities on the Territory of the Congo: "In the case concerning 
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), the Court 
made it clear that the principle of non-intervention prohibits a State 'to intervene, directly or 
indirectly, with or without armed force, in support of an internal opposition in another State' 
(para. 164)". 

2. The supply of arms to the Syrian opposition would violate EU Council Common 
Position 2008/944/CFSP on the control of arms exports by EU Member States. 

All EU Member States have agreed to abide by Common Position 2008/944/CFSP defining 
common rules governing the control of exports of military technology and equipment when 
assessing applications to export items listed in the agreed EU Common Military List. An 
objective assessment of the Criteria in Art. 2 of Common Position 2008/944/CFSP according to 
the agreed guidance of their interpretation and implementation in the EU User's Guide 2 must 
lead to a denial of any export licence applications for the envisaged supply of arms to the Syrian 
opposition: 

• Criterion 2(c) (human rights and humanitarian law): Member States shall deny an export 
licence if there is a clear risk that the equipment might be used in the commission of serious 
violations of international humanitarian law. The UN Commission of Inquiry reported that 
"war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti- 
Government armed groups". 3 

• Criterion 3 (internal situation): Member States shall deny an export licence for military 
technology or equipment which would provoke or prolong armed conflicts or aggravate 
existing tensions or conflicts in the country of final destination. The User's Guide does not 
foresee that arms would be supplied to opposition groups involved in an armed conflict and 
places particular attention on the role of the end-user in a conflict. 

• Criterion 4 (regional peace, security and stability): Member States shall deny an export 
licence if there is a clear risk that the intended recipient would use the military technology or 
equipment to be exported aggressively against another country or to assert by force a 
territorial claim. Despite the 1974 cease-fire agreement, Syria and Israel remain in a state of 
war, which was recently reignited by Israeli air and missile strikes. The Syrian opposition 
has not declared to respect the cease-fire, the disengagement agreement or the area of 
separation. 



1 The Principle of Non-intervention in Contemporary International Law, Speech by Sir Michael Wood at a 
Chatham House International Law discussion group meeting held on 28 February 2007, see 
http://www.chathamhouse.org/sites/default/files/public/Research/lnternational°/o20Law/il280207.pdf . 

User's Guide to Council Common Position 2008/944/CFSP defining common rules governing the control 
of exports of military technology and equipment, Doc. 9241/09, 29 April 2009. 
3 Cf . http://www.ohchr.org/Documents/HRBodies/HRCouncil/PRColSyria15082012 en.pdf . 



• Criterion 5(b) (national security of Member States): Member States shall take into account 
the risk of use of the military technology or equipment concerned against their forces or 
those of Member States and those of friendly and allied countries. The agreed User's Guide 
expressly states that "if an export is liable to engender a direct threat to the security of the 
forces of a Member State [...], who are present either in the country of final destination or in 
a neighbouring country, the a priori assessment will be unfavourable. The same approach 
will be used to ensure the security of international peace-keeping forces." 

• Criterion 6 (behaviour of the buyer as regards its attitude to terrorism, the nature of its 
alliances and respect for international law): According to the User's Guide the term "alliance" 
should be interpreted in a wide sense and includes all agreements which are aimed at 
establishing a significant connection (common political aims). The Syrian opposition is 
operating in alliance with various extremist and terrorist groups united by a common political 
aim. 

• Criterion 7 (risk of diversion): In assessing the impact of the military technology or 
equipment to be exported on the recipient country and the risk that such technology or 
equipment might be diverted to an undesirable end-user or for an undesirable end use, inter 
alia, the capability of the recipient to apply effective export controls shall be considered. No 
effective export or diversion control measures of the Syrian opposition are known to be in 
place. 

3. The supply of arms to the Syrian opposition would amount to a violation of Security 
Council resolution 2083 (2012) establishing an arms embargo against individuals and 
entities associated with Al-Qaida. 

Under the arms embargo pursuant to OP 1(c) of Security Council Resolution 2083 (2012) all 
States shall take measures to prevent the direct or indirect supply of arms and related materiel 
to Al-Qaida and other individuals and entities associated with them. The so-called Al-Nusra 
Front, whose fighters are taking part in military operations with the Free Syrian Army (FSA), is 
linked with Al-Qaida in Iraq and maintains allegiance to Al-Qaida leader Al-Zawahiri. When the 
group was designated by the US as a terrorist organisation in December 2012, numerous 
Syrian opposition groups signed a petition to support Al-Nusra and the coalition's leader Al- 
Khatib called on the US to reconsider its decision. In view of the lack of clear separation 
between military operations of the FSA and the Al-Nusra Front on the ground, the supply of 
arms to the Syrian opposition would amount to an indirect supply of arms to Al-Nusra in 
violation of Resolution 2083 (2012). 

4. Member States supplying arms to the Syrian opposition would incur State 
responsibility for aiding and assisting in the commission of internationally wrongful acts. 

According to Art. 16 of the ILC Articles on State Responsibility 4 a State which aids or assists 
another State in the commission of an internationally wrongful act is internationally responsible 
if (a) that State does so with knowledge of the circumstances of the internationally wrongful act; 
and (b) the act would be internationally wrongful if committed by that State. The Commentary 
inter alia states "a State may incur responsibility if it [...] provides material aid to a State that 
uses the aid to commit human rights violations. In this respect, the UN GA has called on 
member States in a number of cases to refrain from supplying arms and other military 
assistance to countries found to be committing serious human rights violations" (para 9.) When 
applying these principles to the envisaged supply of arms to the Syrian opposition, it is to be 
considered that war crimes, including murder, extrajudicial killings and torture, are perpetrated 
by anti-Government armed groups in Syria, as reported by the UN Commission of Inquiry, as 
well as suicide bombings and attacks against and hostage-taking of UNDOF peacekeeper, as is 
known from the daily news. Should supplied arms be used by armed opposition groups in Syria 
in the commission of internationally wrongful acts, the States who had supplied these arms and 
had knowledge of these acts would incur State responsibility for their aid and assistance in the 
commission of such acts. 



4 See http://untreaty.un.Org/ilc/texts/instruments/english/commentaries/9 6 2001 .pdf .